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Jan 16, 2007
The Supreme Court growls

In the course of a single month, India’s Supreme Court asserted its suzerainty over ground encroached by politicians.

Good news in India, for many years to come, will comprise of reaction to bad status quo, because cleansing the Indian public system is a work in slow progress. Much of that work is being done by the Supreme Court and a growing number of activists.

On December 23, 2005 eleven members of Parliament were expelled. They had been found guilty by the Ethics Committee of gross misconduct. This comprised of accepting bribes for asking pointed questions in the Parliament and misuse of funds assigned by the state for micro public works in their constituencies. It is pertinent to point out, the misdemenours were exposed by television, along with undeniable evidence.

The expelled MPs claimed their privileges as elected representatives had been compromised and approached the Supreme Court. On January 10, 2007, the Court held that expulsions were in order, because the overarching privilege of the Parliament had been compromised by the 11 MPs.

The Court did not stop there. Did it suspect some deeper design? Was the Parliament sneakily building a precedent in order to claim supremacy in the Republic? The Court declared that in India the Constitution alone was supreme and all legislative action -including the action to expel MPs- was subject to judicial review. “Constitutional system abhors absolutism” said the Court.

The very next day, the Court delivered a seminal judgment just in case any doubts still lingered about the oft-proclaimed supremacy of the Parliament. A nine member bench said that all laws placed in the Ninth Schedule after 1973 are subject to judicial review. That year and the Schedule require some explanation.

In 1951, the Ninth Schedule was created to bypass vexatious litigation against land reforms in a young India. The zamindari system was being abolished to break the stranglehold of powerful landlords. Laws placed under the Ninth Schedule were closed to judicial review.

Beginning life with such a noble objective, the Ninth Schedule has since become a safe haven for various cavalier laws passed with a view to pander vote banks. From the original 13 laws, the count of laws under Ninth Schedule is 284 - and growing.

1973 may truly be deemed a landmark year. In Keshavananda Bharati vs. State of Kerala, the Court declared that though Parliament has powers to legislate laws they were subject to review to see if the basic structure of the Constitution was being affected. Although what is meant by ‘basic structure’ was not defined it has come to mean the rights to life, freedom, and equal opportunity. This judgment held ground during the infamous Emergency of 1975, when attempts were made to do away with even the right to life.

The two significant rulings on Jan 10 and 11 have decided once and for all, that it is the Constitution that sits at the apex of our Republic, that none has the right to alter it fundamentally and that it was the Supreme Court that is the ultimate authority to decide if an act was constitutional or not. This development has been widely welcomed as a bulwark against arbitrary action by the state.

Within a week of this, a new Chief Justice assumed office and that event too made history. Mr Justice K G Balakrishnan was born a Dalit in Kerala. He has vaulted all caste impediments using only education and routine opportunities that India offers its citizens. The people who come to man the Supreme Court may hail from better-advantaged classes but they are all home-spun, self-effacing men who have come to be known for their unswerving allegiance to the Constitution. And, that has made India, for all its problems, a land of the free.

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